Understanding Real Estate Law and Real Property Laws
September 20, 2018
Real estate and real property law are the rules that govern land and the structures on it. Real estate law directly and indirectly impacts landlords, homebuyers, home sellers, renters and anyone who is using real property. There are a wide variety of real estate statues on the federal and state level but federal real estate laws may take precedence over local real estate laws.
What Is Real Estate Law?
Essentially, real estate law definition is any rule that tells you who can use a property but also how it can be used; it isn’t reserved for just finance contracts or the actual sale of a property. Real estate and real property law also govern the use of any structures on the land and it even governs how materials below the land can be used and by whom. This can be an extremely complex area of law because there are many aspects of the law that the layman doesn’t consider when engaging in a real estate transaction.
There are many areas that real estate law covers. Let’s take a look at a few.
Buying or selling a home. Federal government, state and city real estate laws govern the rules of residential property sales and purchases. Real estate laws protect buyers from unscrupulous sellers who might attempt to misrepresent the property to a potential buyer and it could also protect the environment from a buyer who wants to make alterations that are damaging to the land or natural environment.
Landlord and tenant law. Real property laws also govern the rules around leasing apartments and tenants. Tenant agreements and forms, eviction rules, and whether or not a property is considered inhabitable are all issues governed by real estate laws.
Foreclosure. Real estate laws determine how foreclosures should be processed. The entire process of foreclosure is impacted by various federal real estate laws and include financial and administrative details.
Land use laws. How a piece of land can be used is governed by real estate laws. Is the property zoned as residential, commercial, or industrial? Can land be rezoned from one type to another? What about development for a university or public school for students? Can zoning rules be temporarily waived in certain situations? This is all determined by the real estate statutes on the books.
Construction. Where can construction take place and what kind of buildings can be built is determined by real estate law. Real estate law also determines the building codes that new construction must meet. When building and construction codes are violated, real estate law governs how violators are punished.
Financing. Real estate laws govern mortgages given to buyers of both commercial and residential real property.
Title and boundary disputes. Real property law governs disputes about who owns a property and the boundaries of that property. These types of disputes or code violations can be quite common and can impact not only the housing association but the community as well.
Property taxes. Real property law governs how much a homeowner pays in local property taxes.
History of Real Property Law
In the western tradition, real property law is rooted in the ownership of property by a monarch or ruling class. This tradition transitioned into a feudal system and eventually into the system in place today. Traditionally, the most politically powerful groups and individuals have exclusively had property rights or the right to own land. Historically real estate law also determined who could (and could not) own real property in various states.
What Is a Real Estate Lawyer?
In general, a real estate lawyer is someone who has the legal skills and knowledge to deal with legal matters related to real property. A real estate attorney also has a solid education and understanding of real estate statutes and federal real estate laws. A real estate lawyer might review, answer questions, provide services and prepare documents such as purchase agreements, mortgage documents, title documents and transfer documents as well as prepare all closing documents, write title insurance policies, and complete title searches on property. Real estate attorneys serve an important role because they can review contracts and make sure that they are fair and beneficial to their client.
Some state real estate statutes only allow attorneys to prepare home purchase agreements while others have no stipulation. But a real estate attorney’s knowledge of real estate laws is especially valuable as those laws can change so working with an attorney may be a better choice for preparing purchase agreements. Real estate attorneys are also beneficial when conducting real property deals for a few other reasons:
- They can handle legal issues as they arise. This is especially important when dealing with complex real estate transactions. Having a real estate attorney on hand just in case issues arise is smart.
- They must keep client information confidential. Real estate attorneys are required to keep client information confidential which is important in real estate deals where privacy is valued.
- They have an in-depth understanding of real estate law. Just having a real estate attorney review contracts can protect all parties and put everyone at ease.
- Real estate attorneys can also help sellers because they can help them understand and prepare for the full tax consequences of selling their property.
How Are Real Estate Attorneys Paid?
Real estate attorneys are mostly paid by the hour but some may charge a flat fee. Using an estate planning software or real estate law software like Smokeball can actually help you get paid faster and capture more time. Smokeball is the legal practice management software that includes automatic legal time tracking software. The hourly or flat rate fee of a real estate attorney can vary widely depending on locale and the attorney’s experience but it can also depend on the complexity of the real property transaction or legal issue a client presents.
Important Real Estate Law Terms
Escrow – A third-party entity that can hold money or property.
Real Estate Agent – A licensed professional who can negotiate real estate transactions. There are very specific rules governing how real estate agents can do business.
Title – Rights that someone has to a property.
Mortgage – A long-term loan given to someone to purchase a property. Mortgages use the property as collateral for the loan.
Closing – A meeting where a property is transferred from one person to another.
Foreclosure – A process through which a property is repossessed by a mortgage lender due to nonpayment of a loan.
Quitclaim Deed – This is a legal instrument used to transfer the interest in a property from one person to another.
Warranty Deed – This is a legal instrument that guarantees that a property’s title is clear and unencumbered.
While there are plenty of real estate law articles out there, hopefully, this one has helped explain the core definition of real estate law and how real estate attorneys work.
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